Unitary Character of EU-wide Design Rights and Territorial Effect

Community design rights are not bundles of national rights, but rather unitary rights that operate throughout the territory of the European Union. This chapter deals with the unitary character and geographic scope of the two EU-wide design rights—RCDs and unregistered Community designs. The nature and geographic extent of national (and Benelux) registered designs are not considered here.

Remedies

Remedies under the Directive are entirely a matter for national law, subject to the harmonization of the Enforcement Directive. They are therefore not discussed here, as they will vary from member state to member state. Under the Regulation, certain provisions are made for remedies, although most procedure and practice is still left to national law, again, subject to the Enforcement Directive. This chapter therefore briefly examines the Enforcement Directive, before turning to the remedies provided under the Regulation. These remedies will apply in relation to infringement and other actions with respect to Community designs, both registered and unregistered.

The Design Directive

No discussion of European Union design law would be complete without an examination of the Directive. Many of the substantive provisions of the Directive mirror those in the Regulation—indeed, the reverse is more accurate as the Directive was adopted first. These substantive provisions are examined in the preceding chapters. This chapter deals with those provisions of the Directive that are not also found in the Regulation.

Interpreting a Design

In many cases, the tribunal is asked to assess the overall impression created on the informed user, not of a physical product made to the design, but rather a drawing, photograph, or other image (or series of drawings, photographs, or other images), which, in many cases, will have been crafted using various conventions such as dotted lines and shading.

Unregistered Community Designs

One of the industry sectors most vocal during debates about European Union intervention in design rights was the fashion industry, commercially important in a number of European Union member states, and large employers in the voting districts of many members of the European Parliament.

Definitions

The Regulation establishes on an EU-wide basis two distinct design rights: Much of the law relating to design rights applies to both of the above, and to national (and Benelux) registered designs by virtue of the Directive.

Prior Designs

Article 4 of the Regulation provides that ‘a design shall be protected by a Community design to the extent that it is new and has individual character’. Both novelty and individual character are assessed against designs made available to the public prior to the relevant date (the date of disclosure in the European Union for unregistered Community designs and the application or priority date for RCDs).

Novelty

Registered and unregistered Community designs and national and Benelux registered designs are protected to the extent that they are new and have individual character. This chapter considers novelty.

Exclusions from Protection

Not every feature of a product can be protected by design rights within the European Union. The Regulation and Directive expressly exclude from design protection: This chapter deals with each in turn.

RCDs

Article 12 of the Regulation provides for the registration of RCDs. Upon registration by the Office, a design which meets the requirements under Section 1 of Title II of the Regulation is protected as an RCD for a period of five years as from the date of the filing of the application. The RCD may be renewed in periods of five years each, up to a total term of 25 years from the date of filing.